HSIEH HAW SHANE GARY v. THE ESTATE OF CHANG HO YING deceased

HSIEH HAW SHANE GARY v. THE ESTATE OF CHANG HO YING deceased

The court found that Gary had established the necessary factual possession and animus possidendi by continuous open and exclusive occupation, payment of rates and carrying out repairs and maintenance, and that no lawful permission persisted after the death of the administrator because no Letters of Administration de bonis non had been issued; accordingly the registered proprietor's title was extinguished and a possessory title vested in Gary under the Limitation Ordinance Cap 347.

Citation
HSIEH HAW SHANE GARY v. THE ESTATE OF CHANG HO YING deceased
Parties
Applicant/plaintiff: Gary; Respondent: Registered Proprietor; Interested Party/purchaser Under Compulsory Sale: Eversound
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
19 June 2017
Case Number
HCA691/2016
Procedural Posture
Adverse Possession / Declaration Under Limitation Ordinance Cap 347 / Application for Judgment in Default of Defence; Heard 24 May and 19 June 2017; Judgment Delivered 19 June 2017
Outcome
Declaration granted that the registered proprietor's title was extinguished by adverse possession and that possessory title vested in the applicant Gary
Legal Topics
Adverse Possession, Possessory Title, Limitation Ordinance Cap 347, Letters of Administration, Compulsory Sale Under Cap 545, Lands Tribunal Orders
Source Language
EN
Property Law Probate Civil Procedure Land Compensation/compulsory Sale Adverse Possession Possessory Title Limitation Ordinance Cap 347 Letters of Administration +2 more

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Parties

Gary

Applicant/plaintiff

Registered Proprietor

Respondent

Eversound

Interested Party/purchaser Under Compulsory Sale

Procedural Posture

Adverse Possession / Declaration Under Limitation Ordinance Cap 347 / Application for Judgment in Default of Defence; Heard 24 May and 19 June 2017; Judgment Delivered 19 June 2017

Legal Issues

  1. 1 Whether the applicant acquired possessory title by adverse possession of the subject property
  2. 2 Whether any permission to occupy existed that would defeat a claim of adverse possession and whether such permission survived deaths of prior administrators
  3. 3 Effect of failure to obtain Letters of Administration de bonis non on availability of permission to occupy

Ratio Decidendi

The court found that Gary had established the necessary factual possession and animus possidendi by continuous open and exclusive occupation, payment of rates and carrying out repairs and maintenance, and that no lawful permission persisted after the death of the administrator because no Letters of Administration de bonis non had been issued; accordingly the registered proprietor's title was extinguished and a possessory title vested in Gary under the Limitation Ordinance Cap 347.

Court Disposition

Declaration granted that the registered proprietor's title was extinguished by adverse possession and that possessory title vested in the applicant Gary

Orders

  • Declaration under Limitation Ordinance, Cap 347 that Gary has obtained possessory title by adverse possession of the subject property
  • Trustees of Lands Tribunal sale proceeds to remain as they are pending identification of beneficiaries; no immediate distribution ordered to registered proprietor